Cop Out

It’s almost criminal what some police officers get away with.

Erin wasn’t a cheerleader. She didn’t go to prom and all these cute little things,” Paige Guion says of her 19-year-old daughter. “She’s been an alternative kind of kid.

Pint-size, pony-tailed and huddling knees-to-chest in a wicker chair on her mother’s porch, Erin (pictured on the cover) immediately comes off as all of 15. Then she rolls a cigarette, revealing a skull tattoo on her left wrist.

Spitting loose tobacco between drags, Erin recalls clocking out of work one night last July at about 10 p.m. It was the height of baseball season, and her job pushing chicken wings, like many she’s had, was temporary. She met up with her twin brother and a few others at a friend’s apartment, where she did her part to snuff out two bottles of vodka.

Trailing the group to another house party hours later, Erin called aside her buddy Shawn Hadley to confess she was “too wasted.” So they grabbed a few beers'naturally'and set off on foot back to Erin’s mom’s house, about an eight-block schlep.

Stopping off for a smoke at Granite High School, Erin and Hadley grimaced as a South Salt Lake squad car pulled up. Officer Jason Burnham'“Imagine a cop,” Erin says, “brown-haired, grumpy looking, not super overweight, probably like 30 or 35 [years]â€'asked if they knew drinking on school grounds was illegal.

“â€˜Yeah, can we throw these away for you?’” Erin recalls her answer.

But Burnham wouldn’t be placated.

Erin initially gave him a pseudonym for fear that unpaid fines on a juvenile DUI conviction would cost her a night in jail, but quickly ’fessed up.

Hadley blew a 0.08 on a portable Breathalyzer test and, according to a police report, Burnham cited him for possession by a minor and possession on school property. Hadley wanted to wait for Erin, but he says Burnham ordered him to scram. For her part, Erin registered a 0.195 blood-alcohol level and collected citations for possession by a minor, possession on school property and giving false information. Burnham released her just past 3 a.m., noting in his police report, “Erin was not a danger to herself and appeared to walk, speak and function normally.

Burnham then doubled back to offer Erin a lift, and he doesn’t dispute what she says happened during the next three hours, except on one key point. He admits “touching [her] breasts and genitals,” according to the findings of an investigation by the Salt Lake County District Attorney’s Office, but he maintains “it was consensual and that she was participating.”

Erin says she told Burnham she could manage, but he goaded her, saying it was safe to take a ride from a cop. Leaning against the passenger-side window, Erin says she repeatedly asked to be taken home, but Burnham insisted she was too drunk, saying that she could either come back to his apartment, or sleep it off in jail. From there, it gets fuzzy. Erin doesn’t remember the drive, but she remembers Burnham helping her up the stairs.

“We were inside and he offered me something else to drink,” Erin says, noting that she declined. “He brings me a pair of sweats; I went into the bathroom to put them on; I was crouched in the corner crying to myself, â€˜How the f'k do I get out of this s't?’”

She remembers trying to remember every detail, trying to stay alert fiddling around on Burnham’s computer and then sitting on his couch, which he told her was too cluttered to sleep on. She remembers having difficulty walking into the bedroom, then nothing, then coming to “in his bed, and he was on top of me, my shirt was lifted up, and his hands were in my pants. I put my hand on his wrist and tried to push it away. I said no'and I was just like too drunk to fight back. â€¦ And then I blacked out again.

Light flooded back in a couple hours later, Erin says, with Burnham, in uniform, rousing her sternly: “â€˜Erin! Erin! You need to go.’

At dawn, in a gas-station parking lot near her mother’s house, Erin stepped out of a police cruiser. She walked home and slinked downstairs to bed, not sure if she’d been raped but feeling violated to the core.

Erin spent the next day at the hospital, undergoing sexual assault examinations and questioning by investigators with the Salt Lake County District Attorney’s Office. Within days of news breaking that the district attorney wouldn’t charge Burnham, Erin overdosed on a prescription-drug cocktail, which she acknowledges was a suicide gesture. “I heard that they dropped it, and I started crying. I just felt so helpless,” she explains. “These people are supposed to be defending justice. â€¦ They’re saying that what happened was OK, that it was my fault.

With her daughter out of earshot, Paige Guion, a nurse, laments feeling powerless as Erin “melts away before my eyes.

“I wish I could tell you my daughter was doing great, and say that it’s graceful, and some bulls't like those people whose daughter got kidnapped, and they all stood there shining with their blond hair. Well, that’s not the way it’s happening here.

As Erin retreats inward, Guion says she’s trying to salvage some validation for her daughter’s ordeal. Meanwhile, Burnham has slipped through one seam after another in a crazy quilt of mechanisms set up to hold police officers accountable for crimes and misbehavior.

The lion’s share of police misconduct is handled within departments’ internal-affairs divisions, where sole discretion is vested in one department head, and discipline can be arbitrary. For example, a write-up for producing and distributing amateur pornography didn’t become a pink slip until one offending officer introduced odd masturbatory props. Furthermore, officers being interviewed for an internal investigation may invoke their “Garrity” rights'quite the opposite of the better-known Miranda rights'in that anything said cannot be used against them in a court of law. Add to that the criminal system’s sometimes-insurmountable burden of proof, leaving civil lawsuits as the regular last resort for those allegedly done wrong by police. Civilian review boards'scarce in Utah, with none operating in South Salt Lake'offer independent oversight of department-level discipline decisions, but they’re advisory panels with no vested authority. Finally, at any stage in the process, officer misconduct can be kicked up to Peace Officer Standards and Training (POST), the state agency responsible for issuing and revoking a peace officer’s privilege to wear a badge in Utah. However, not all misconduct gets referred, and POST action doesn’t necessarily prevent officers from landing law-enforcement jobs in other states, or in private security, the way a criminal record might.

In declining to prosecute Burnham for felony forcible sexual abuse, Deputy District Attorney Paul Parker cited inconsistent recollections. That the ambiguity was helped along by Burnham’s evolving accounts of the truth is all the more galling to Guion’s family.

Alan Mortenson, Erin’s attorney in an impending civil suit against Burnham and South Salt Lake, says investigators told him that Burnham initially denied taking Erin back to his apartment at all. That is, until he was confronted with Erin’s recollection of a Tasmanian Devil bedspread, among other details of his apartment. Then Burnham “only admitted to taking [Erin] to his apartment,” Parker wrote in his final assessment of the case. “He was adamant that she went to sleep in his bed and he stayed on the couch. After a polygraph in which he indicated deceptive, Officer Burnham called back and stated that he wanted to tell the truth.

In a subsequent statement'no indication of whether it was buttressed by another polygraph'Burnham conceded to the sexual touching. But he contended it was consensual, Parker wrote, adding, “eventually she told him to stop and he did.”

Although Erin passed a polygraph, and although a sexual-assault examination turned up bruising and an inconclusive vaginal lesion, her account was spotty and therefore “fatal to any argument that she did not consent,” Parker determined. “It may be that [Erin] would testify that she had not consented to the sexual contact and would not consent regardless of her state of intoxication. However, even then she would have to acknowledge that she did things and made choices which she does not remember.

State sexual-assault statutes provide that consent becomes moot if the actor knew the victim was “physically unable to resistâ€'say, due to intoxication'or if the “actor coerces the victim to submit by threatening to retaliate â€¦ and the victim perceives at the time that the actor has the ability to execute this threat.

Erin insists if she hadn’t been drunk, “I would have gone down fighting,” emphasizing that a scuffle with police when she was 15 left her with a broken arm. And she’s adamant that her only choice was the officer’s apartment or jail.

Dennis Crouch, director of the University of Utah Center for Human Toxicology, offered that with a 0.195 blood-alcohol level, “I would think most people would be confused at best, maybe stuporous.” Additionally, “An inexperienced drinker could well be comatose at 0.19.” However, Crouch stressed he’s unfamiliar with the details of Erin’s case, and he noted that some experienced drinkers tolerate extremely high levels of intoxication better than others.

Parker didn’t allude to another possibly applicable crime, custodial sexual misconduct, which can be charged for any sexual conduct, consensual or not, if “a reasonable person in the actor’s position should have known under the circumstances that the individual was a person in custody.” And, perhaps most glaringly, Parker’s declination report doesn’t offer an explanation for why Burnham saw fit to take Erin to his apartment in the first place.

“What other designs could a person have?” Guion poses. “What, he was helping my poor, drunk child who had nowhere else to go? She lives a block away. Why didn’t he take my kid to the hospital? Why didn’t he take her to the drunk tank? Why didn’t he take her home to her mother?

Repeated efforts to reach Burnham for comment were unsuccessful. He has reportedly moved from his last known address, the apartment, and his whereabouts were unknown to two past acquaintances.

Per policy, the district attorney’s office declined comment because no charges were filed. A brief letter addressed to Erin from now-former South Salt Lake Police Chief Theresa Garner said an internal-affairs investigation found the evidence “insufficient to prove that Officer Burnham sexually assaulted you.” Though Burnham’s actions violated department policy, constituting “conduct unbecoming a police employee,” he resigned before formal discipline could be imposed.

“We have absolutely nothing,” says an exasperated Guion. “He literally walked away from the police force and literally has walked off into the world with nothing on his record.

To boot, South Salt Lake dropped the citations against Erin on the eve of a pretrial hearing in September, effectively delaying the discovery of evidence that could be used in a civil suit, which Mortenson indicates will soon be filed. As it stands, Guion has no idea whether Burnham has a discipline record, or if he’s received similar complaints in the past. Records of sustained internal police discipline are “normally public,” according to Utah’s Government Records Access and Management Act, but agencies don’t always release them.

Asked for prior sustained complaints against Burnham, South Salt Lake Deputy City Attorney Janice Frost told City Weekly, “We won’t give it to you.” Asked why not, she replied, “A complaint has been filed against the city and this is probably going to a lawsuit.

Court documents, however, show that Burnham was charged in January 2004 with unlawful detention and disorderly conduct, both misdemeanors, stemming from a domestic altercation at his home the previous December. About two months after their nuptials, Burnham’s since-estranged wife told police that he “pushed her to the ground and attempted to kick her,” and “held her by her shoulders and refused to allow her to leave their bedroom.” In May 2004, Burnham pleaded guilty in abeyance to an infraction of disorderly conduct, meaning the charge would be expunged if he stayed out of trouble and completed domestic-violence therapy.

South Salt Lake put Burnham on paid administrative leave pending the outcome of the case. After taking the plea, documents show that unspecified action commenced to strip his peace-officer certification. But because the plea agreement was conditioned on assurances that it would not “subsequently be legally available to attack his status as a police officer,” Burnham successfully petitioned the Salt Lake County Justice Court in December 2004 to withdraw his plea and dismiss the charges “with prejudice.

That Burnham was free to carry a gun and badge by July 2005 makes Guion want to drink in the afternoon.

“So here’s this police force hiding whatever they’re hiding,” she says. “And isn’t it a pretty clear-cut case? A cop, with a gun and a car and a uniform, who ticketed them, who’s in that position of power, and who lied about even taking my daughter home with him, isn’t it obvious that he was up to no good?

In just two weeks on the job, South Salt Lake’s new police chief, Beau Babka, says it’s become clear that his 58-officer department has a serious credibility problem. In recent years, at least five officers besides Burnham have been terminated or resigned for offenses including groping a female motorist, theft, cocaine use and domestic violence.

But, Babka insists, “It’s a new paradigm here â€¦ and I’m very open to opening our police department to the scrutiny I think it probably deserves.

To that end, Babka wants to implement a citizen-review board to help dispel the department’s dubious reputation, which he says is voiced “time and time again,” even in law-enforcement circles. Though Babka doesn’t feel his words can assuage Erin and her mother’s disillusionment, moving forward, “I’m going to work as hard as I can to make things right,” he vows.

It could be that Burnham isn’t out of the thicket yet. Criminally speaking, Guion’s options are numbered. Barring a successful appeal for reconsideration to District Attorney David Yocom, Guion says she’s willing to petition the Attorney General’s Office to assume jurisdiction and take another look at the case. Offering to assist those efforts is Rape Recovery Center Executive Director Heather Stringfellow, formerly a sex-crimes investigator with the Salt Lake City Police Department, who deemed the decision not to prosecute Burnham “extremely troubling.

If that fails, Guion intends to jumpstart the process to revoke Burnham’s peace-officer certification, which stalled with his vacated domestic-violence plea. A consolation prize at best, she says barring Burnham from police work is “at least something.

POST won’t confirm whether it’s taking action against an officer unless and until an administrative law judge has sustained the misconduct alleged. If the judge rules against the officer, those findings and a recommended punishment are forwarded for final review and approval to the POST Council, which is made up of law enforcement and civilian appointees. Punishments range from up to a five-year suspension from sworn police work to a permanent revocation of an officer’s certification.

Between March 2003 and September 2005, POST suspended or revoked certifications for 114 police officers, jailers, prison guards or other sworn personnel. Their offenses ranged from beating a restrained prisoner, to having videotaped sex with a donut, domestic violence, bedding a drug snitch, sexual assault and DUI. Many had already pleaded guilty or were tried and convicted before POST took action. But where the criminal justice system balked, POST stood as the final, if not ultimate, arbiter.

Jeffrey S. Milne was a Salt Lake City Police officer for nearly three years when, in July 2002, he was dispatched to a fight in progress at an eastside ShopKo. When Milne arrived, store security already had the inebriated suspect handcuffed.

According to witnesses and a security videotape, Milne “picked the suspect up and slammed him into the wall and proceeded to slap him about the head and face,” POST determined. “The suspect was not resisting, and Mr. Milne placed him into a chokehold and took him out of the store.

Milne was charged with assault, but it was later dropped. Because the Salt Lake City Justice Court is not a court of record, public documents containing grounds for the dismissal were destroyed. The POST Council rejected a proposed four-year suspension, insisting instead on revocation.

In a similar case, a Uintah County corrections officer choked an unruly inmate, who was strapped into a restraint chair, for reportedly making vulgar statements about the officer’s mother. The officer’s supervisor advised others present, “you didn’t see a f'king thing,” according to an internal-affairs investigation, and instructed the officer “to work the â€˜choking portion’ of his incident report to say he was applying a â€˜pressure-control hold.’” Both were terminated, but neither was charged criminally. POST has taken no action against the senior officer and suspended the other for three years.

A Washington County deputy sheriff and a Washington County corrections officer were attempting to smuggle anabolic steroids out of Tijuana, Mexico, when U.S. Customs agents arrested them at the border. The southern Utah lawmen were ordered to appear before a magistrate to answer to felonies that carry up to five years in federal prison. However, “the United States Attorneys Office in San Diego, California, decided to not prosecute [the officers] with the understanding that [POST] would take action,” a POST case summary noted. Both officers received four-year suspensions.

Last September, POST effectively ended the 19-year career of a Salt Lake City Police officer, who resigned from the force in May 2005 amid internal investigations. During an August 2004 trip to Nevada’s Lake Mead National Recreational Area, federal charges stated the officer “did assault” his live-in girlfriend by “grabbing her hair and wrenching her head backwards,” and “strangling” the woman until she “started to see stars.” The officer entered into a diversion agreement, meaning the charge would be dismissed if he satisfied the court’s requirements. A subsequent police department investigation found the officer had also “paid for and accessed child pornography on his home computer” for which no charges have been filed.

Several officers sanctioned by POST for sexual misconduct with a prisoner, parolee or police informant were never charged criminally. Neither of two State Bureau of Investigations agents were charged for having sexual intercourse in a police vehicle while staking out a market suspected of selling alcohol to minors, nor, ironically, for allowing minors to consume alcohol in their presence. The insatiable pair used “a motel room that the state paid for” for two other assignations, POST records show. The male, also the senior officer, had his certification revoked, while his female subordinate drew a four-year suspension.

In some cases, earlier intervention may have averted further misconduct, if not outright embarrassment to law enforcement.

In one bizarre instance, the Department of Corrections decided internal discipline was sufficient for a prison guard who circulated an amateur pornographic video among staff depicting himself having sexual intercourse with his wife, and masturbating while on duty in the prison guard tower. Criminal charges were not pursued at that point. It took the subsequent revelation that four additional videos were floating around before the guard was fired, prosecuted, convicted for misdemeanor lewdness and referred to POST, which suspended his certification for four years. Those videos, according to POST, involved the officer:

“[M]asturbating on duty in the prison tower: (a) while completely naked; (b) using objects such as donuts, a flashlight, a bottle and a chair to masturbate with; (c) with the name of a female co-worker written on his penis; and (d) with a cardboard sign hung around his neck showing his home and work phone numbers and inviting females to call him at work to request that he masturbate for them.

In another case, former Tooele police officer Travis Sutherland received his first reprimand, for rudeness, within a year of joining the force in June 1994. Before turning in his badge in 1999, POST records and court documents show that Sutherland racked up write-ups for foul language; “disposing” of beer confiscated during an arrest, the beer being found in his refrigerator instead of an evidence locker; offensive demeanor; rudeness; accidentally discharging a firearm during a burglary investigation; failing to properly dispose of a marijuana cigarette; speeding in a police car; using foul and abusive language at a daycare in the presence of several children; and placing a pair of pliers on the fingers of two 15-year-old boys, squeezing the pliers and threatening to squeeze harder if the boys didn’t tell the truth.

The department countenanced the incorrigible cop until learning in 1999 that Sutherland had driven a 15-year-old girl to a novelty sex toy shop to get her navel pierced, discussed oral sex on the way, made unwanted sexual advances and plied the girl and a friend with prescription drugs. None of Sutherland’s misconduct was charged criminally, and POST decertified him in 2004.

So, are police officers held to a higher standard of conduct than the general public? Absolutely, in some respects. But in others, it isn’t quite clear.

High-profile defense attorney Greg Skordas is frequently the first call for Utah cops staring down criminal charges or POST discipline. He also teaches criminal law to prospective officers at the police academy. He’s sat in judgment of officers as a POST hearing officer, and he spent eight years as a Salt Lake County prosecutor. That makes Skordas about as qualified as anyone to assess whether police misconduct is treated with kid gloves and, if so, why.

The biggest distinction Skordas sees between cops and civilians facing criminal charges is that cops have more at stake. Indeed, if a surgeon gets sauced and busted for a DUI one night, she’s conceivably slicing and dicing by morning. If an accountant beats his wife, he’s not going to lose his CPA license. For cops, careers hang in the balance.

“It’s their avocation,” Skordas stresses, “and it’s hard to say you can’t do that anymore.

And it’d be a mistake to consider a POST suspension a token punishment, Skordas says. For instance, while DUIs carry a relatively light suspension, usually less than two years, try finding another job with that on your record, he points out. “Do we want you driving our cars?” He adds that a four- or five-year suspension is as good as a lifetime ban, because “They’re going to lose all their training, their reputation â€¦ their will to do it again.

Though Skordas doesn’t hide a soft spot for cops, he says they rightfully “get hammered” when they screw up. That said, contemplating criminal charges against a fellow crime fighter is inherently difficult. “I will admit that as a prosecutor you’re almost looking at charging your own,” Skordas says. “They’re almost family.

While vouching that prosecutors will file charges on anyone they think the evidence will convict, if an officer stands to get booted off the force anyway, “it seems harsh to take two bites out of that apple,” Skordas says.

“Almost everything you’ve described technically could be a crime and could be proven,” Skordas concedes of numerous POST suspensions and revocations doled out for illegal conduct that prosecutors didn’t charge. “The question is why. What do you gain at that point?”

Assurances, says Leticia Medina, a four-year POST Council appointee until late last year. Concerned that some of the more egregious cases to come before her were never prosecuted, Medina questions whether POST decertification alone can prevent tarnished officers from getting law-enforcement jobs out of state or from wielding comparable authority in the private-security sector. “If it was on his rap sheet, a company would have to look twice before they hire that individual,” she says.

More alarming to Medina is that police departments are often slow or remiss to inform POST of officers, like Travis Sutherland, whose repeated or serious violations would certainly warrant POST action. Medina says she also expects POST to receive excessive-force complaints, like several sustained by the Salt Lake City Police Department, which have yet to materialize at POST.

“In some cases, I think law enforcement would rather have their own peers review them because they know â€¦ the stresses that an officer goes through day in and day out,” Medina says, surmising it could be that police departments resent outsiders taking part in policing the police.

Skordas offers another explanation. “They’re going to work with the guy a couple times, because the agencies have an investment in these people â€¦ young men and women that are trying to do a good thing,” he says. But he agrees that cops like Sutherland have no place in the field to begin with, and “they should have intervened on that one.

Mayor Anderson’s piecemeal solution has been a revamp of the capital city’s Civilian Review Board which, until recently, maintained decidedly toothless oversight of the Salt Lake City Police Department.

“I saw several instances of what I thought were clear cases of inappropriate conduct that were being whitewashed by the internal-affairs process,” Anderson says. “One officer had about a page and a half of complaints, some of them very serious complaints, and most of which were either shown to be exonerated or not sustained. He later â€¦ went to Phoenix where he ended up shooting his wife in the head and going to the penitentiary.

That officer reportedly racked up a department record of 76 internal-affairs complaints before his 1991 retirement, many for allegedly violent behavior, but only five were sustained. Had stricter controls been in place, Anderson is convinced early intervention could have spared the officer’s wife.

“So that was the most dangerous situation of all where there’s a pretense of accountability and â€¦ an independent review, when in fact there was none,” says Anderson.

In reconstituting the board, Anderson insisted on investigative authority. Now the board enjoys access to all internal-affairs investigative materials, reviews all complaints of excessive force and any others it so chooses, and reports directly to Chief Rick Dinse, who doesn’t make a final decision on disciplinary matters until the board weighs in. Means to spot and punish frivolous complaints were also included.

Anderson says Salt Lake City cops are now held to more credible scrutiny than officers anywhere in the state. At that, he’d like to see departments statewide emulate the program, which has investigated 115 allegations of misconduct, sustaining about half since going live in 2003.

Reading the fine print, though, of 57 separate allegations sustained by the Civilian Review Board, Chief Dinse only sustained 17. According to board documents, Dinse’s decision has yet to be entered on another 14 allegations, leaving at least 26 cases where the chief either disagreed with the board, or decided that the violation warranted nondisciplinary counseling.

Dinse explains that some of the disparity is due to multiple violations being rolled into one for the purpose of discipline, but he acknowledges his prerogative accounts for much of the difference. While Dinse says internal investigations are carried out meticulously, he adds that his decisions can be nuanced to the point of retaining an officer guilty of more egregious misconduct than officers he’s terminated.

“Every case has uniqueness to it'not only to the allegations in the complaint, but to the individuals, to the individual’s background, to how they accept the discipline, to what degree they accept accountability,” Dinse says. “I take all of those things into consideration. In some cases, people think I was light [and] I think there are those in the department that would say I’m hardnosed.

Dinse says the process is more open than ever before thanks to the Civilian Review Board, but he adds that improved internal checks and efficiencies have also made discipline more consistent. While a meaningful civilian-review board helps put the screws to bad cops, attorney Brian Barnard maintains some misconduct inevitably goes undetected.

“I probably on the average get five phone calls or letters a week from people who have had an encounter â€¦ where the officer has sworn at the person, or shoved the person unnecessarily, or put the handcuffs on too tight, or hit somebody after the handcuffs were put on them, or maced them after the handcuffs were on, or taunted them,” Barnard says.

Even so, Barnard rarely accepts police-misconduct cases because, legitimate or not, they often come down to a losing battle of credibility between an officer and a criminal suspect. He adds that marginalized people'those most likely to deal with police'are often too intimidated or ignorant of the system to bring a complaint, so they’re ignored in the final tally.

“And then there is that code of silence which harms the vast majority of police officers, because the 5 percent or the 10 percent of bad guys, the people who do crazy things, are never taken to task, because their buddies didn’t see anything,” Barnard says.

After a judge ordered a senior Salt Lake City Police officer'since terminated for misconduct'to testify in a federal police brutality case, then-plaintiff’s attorney Anderson says the officer remarked, “â€˜They might be able to make me testify, but they can’t make me remember.’

By the nature of the job, cops deal with people at their absolute worst'worked up, acting out, drunk or doing something criminal, Barnard says. “Given that, maybe you go back to psychological screening of officers [to ensure] you’re not letting somebody into law enforcement unless they have the patience of Job and the philosophy of Gandhi.”

That pretty much describes Frank Serpico’s outlook on police work. Thirty-five years after he was shot in the face and allegedly left for dead by his brothers in blue, the cop-turned-counterculture-icon says not enough has changed since he blew the lid on widespread corruption in the New York City Police Department. (Al Pacino starred in the 1973 Hollywood adaptation Serpico.)

“I am inundated with mail from police officers, not only throughout the country, but the world, who speak to me of misconduct and corruption, yet the problem remains the same,” Serpico recently told City Weekly by phone from his home in upstate New York. “They are meeting with resistance from the people at the top.